TRANSCRIPT

JIM LEHRER: The U.S. Supreme Court changes the rules on race in the schools. Jeffrey Brown lays out the decision.

JEFFREY BROWN: The ruling by the Supreme Court this morning involved school districts in Louisville, Kentucky, and Seattle, Washington. In both cases, the school board used skin color as at least one factor in assigning students to public schools.

NewsHour regular Marcia Coyle of the National Law Journal was in the court for what turned out to be a very dramatic day. And she joins us now.

Marcia, why don’t you start by giving us a brief reminder of the facts? What were Louisville and Seattle trying to do?

MARCIA COYLE, National Law Journal: Well, the parents of students in the elementary schools and high schools in Louisville, Kentucky, and Seattle, Washington, challenged those school districts’ student assignment plans. Those plans generally gave students a choice of schools to attend, and most students got their first choice. But where the race of a student would make a difference in the desired racial composition of a particular school, the race characteristic of the student could determine where he or she went.

The parents challenged that plan, saying classifying our children by race violates the equal protection clause of the Constitution. But the school districts countered — and they did this successfully in the lower courts — that they had compelling interests in reducing racial isolation in their schools, achieving a diverse student body population, and also combating the effects in their schools of segregated housing patterns.

JEFFREY BROWN: So the school districts won in the lower courts, but today the Supreme Court said, no, you’ve gone too far in using race?

MARCIA COYLE: That’s correct, Jeff. In an opinion by Chief Justice Roberts, the court voted 5-4 to strike down these plans as unconstitutional. The chief said that, even if the interests here that the school district asserted were compelling interests, these plans were not narrowly tailored.

These are classic words in constitutional analysis. When the government classifies you by race, the court has held that that classification undergoes the Constitution’s most searching examination. The government has to prove there’s a compelling interest and that the means the government uses to achieve that interest is narrowly tailored.

The chief justice said these plans were not narrowly tailored, because they were designed and they operated to achieve racial balance, not the other interests. He said race was the only factor here.

Also, he said, there was no larger educational concept that the districts were relying on to achieve the benefits of a diverse student body; these plans were based on racial demographics. He quoted from the court’s landmark Brown v. Board of Education and said that Brown promised that no child would be sent to school on the basis of his or her race. The best way, he said, to stop racial discrimination is to stop discriminating on the basis of race.

Examining the dissent

JEFFREY BROWN: All right, so the chief justice had with him Antonin Scalia, Clarence Thomas, and Samuel Alito, that foursome that has now become a regular foursome, and a key fifth vote, which we now see as often the swing vote, Anthony Kennedy.

MARCIA COYLE: Right.

JEFFREY BROWN: But he wrote what is a very interesting concurring opinion.

MARCIA COYLE: Yes, the chief had five for striking down the two school plans, but he lost Justice Kennedy, who wrote separately and read his separate concurrence from the bench, because Justice Kennedy said he felt that the chief's opinion could be read to say that race can never be considered by school districts who are attempting to achieve a diverse student body.

He said that they are allowed to look at race-conscious measures, but race can't be the only factor. He suggested alternative ways: For example, strategic siting of schools when you build schools, doing targeting recruitment of students and teachers, allocating resources for special programs. This might be other ways of achieving what you want.

JEFFREY BROWN: And then the drama continued when Justice Stephen Breyer read his dissent out loud?

MARCIA COYLE: It was an impassioned dissent, and it was a lengthy dissent. Some of my colleagues clocked him at about 21 minutes, which is very long for the reading of a dissent. And he even noted that he had written probably the longest dissent of his career. It was 77 pages long.

He and the other dissenters -- Justices Stevens, Justice Souter, and Justice Ruth Bader Ginsburg -- did agree with Justice Kennedy on the point that school districts may use race-conscious measures. So in a sense here, it is Justice Kennedy's opinion that controls on that broader issue.

But Justice Breyer and the dissenters didn't agree on much else with either Kennedy or Roberts. Justice Breyer said, if the interests that the school districts have asserted here are not compelling, what is? He also said that these plans were narrowly tailored; this was a very limited and diminished use of race. He accused the majority of turning its back on the court's precedents. He said these types of plans have been approved by the court ever since Brown v. Board of Education.

JEFFREY BROWN: OK. Thanks, Marcia Coyle.

Back to you, Jim.

Race experts on the decision

Roger Clegg

Center for Equal Opportunity

I'm very happy that they did what they did. I'm glad that they said that it's wrong for Seattle and Louisville to tell children that where they can go to school depends on their skin color. I think that was the right thing to do.

JIM LEHRER: Yes, and now Judy Woodruff examines the meaning and the impact of the court's decision.

JUDY WOODRUFF: For that, we bring in two individuals with different views of today's ruling. Roger Clegg is president of the Center for Equal Opportunity, which joined an amicus brief asking the court to strike down the school assignment programs. And Theodore Shaw, president of the NAACP Legal Defense Fund, he filed a brief supporting the school districts' policies.

Gentlemen, thank you for being with us.

Mr. Clegg, to you first. The court ruled as you wished. What's your reaction?

ROGER CLEGG, The Center for Equal Opportunity: Well, I'm very happy that they did what they did. I'm glad that they said that it's wrong for Seattle and Louisville to tell children that where they can go to school depends on their skin color. I think that was the right thing to do.

JUDY WOODRUFF: And Mr. Shaw?

THEODORE SHAW, NAACP Legal Defense Fund: Well, I think this is a sad day when it comes to the promise of Brown v. Board of Education. When voluntary efforts to integrate public schools are interpreted by the Supreme Court to be racially discriminatory, we've reached an Orwellian state. I am grateful for...

JUDY WOODRUFF: An Orwellian state, is that what you said?

THEODORE SHAW: That's right. I am grateful for the sliver of hope that Justice Kennedy's opinion holds out. He refused to join the most radical view, which would have made it impossible for school districts to do anything about racial segregation.

JUDY WOODRUFF: What is the effect, Mr. Clegg, going to be on school districts around the country? We know what it's going to be for Louisville and Seattle; these plans cannot go forward. What about other school districts around the country looking at race with plans in the works?

ROGER CLEGG: I think that any school board that is using race to decide where children can go to school is going to have serious doubts about whether that kind of plan should continue. I think that those plans are going to be changed.

I think they're going to look at what the Supreme Court said today, the fact that a majority of the court said that it was unconstitutional to do that, the fact that these plans were not sloppy plans, and yet the court struck them down. And, of course, I think that school boards are also going to be sensitive to the fact that most parents don't like it when they are told that where they can send their children to school depends on what color they are.

JUDY WOODRUFF: So what are you saying happens in these districts?

ROGER CLEGG: I think that school districts that take race into account in deciding where children can go to school are going to change those plans.

"A continued re-segregation"

Theodore Shaw

NAACP Legal Defense Fund

This is not about school districts telling people that they can go to school on the basis of their skin color. This is about school districts trying to continue to fulfill the promise of Brown and to avoid segregation.

JUDY WOODRUFF: Is that the future you see, Mr. Shaw?

THEODORE SHAW: Well, I think that what we're going to see is a continued re-segregation of many of our nation's public schools, although we should be very clear. Justice Kennedy's opinion is significant. It leaves open the possibility that school districts can take a number of actions to avoid segregation, and even goes as far as to say that school districts and the government in general ought to be able to address what's been called de facto segregation, which is a bit more progressive than Supreme Court decisions had indicated in the past.

This is not about school districts telling people that they can go to school on the basis of their skin color. This is about school districts trying to continue to fulfill the promise of Brown and to avoid segregation. In no way is this comparable to the kind of regime of segregation and discrimination that existed under Jim Crow.

JUDY WOODRUFF: But what is it about Justice Kennedy's opinion that you take some hope from?

THEODORE SHAW: Well, Justice Kennedy's opinion made it clear that he refused to join the plurality opinion written by the chief justice, insofar as it indicated that race can never be considered. And it laid out a number of things which could be done that might help ameliorate racial segregation.

And I suspect that there are other things he would also accept. And he's the key vote here, so the window is open. It's not completely closed. And I think that, ultimately, this is more of a Bakke-type 4-4-1 split than a 5-4 split, in which his decision will ultimately control and rule the day.

JUDY WOODRUFF: Referring to another Supreme Court decision on race.

Mr. Clegg, if the Kennedy concurring opinion is a window of hope for Mr. Shaw, what does it represent for you?

ROGER CLEGG: Well, I think it's a very, very narrow window, and I think that most school boards, when they look at that narrow window, and they look at the fact that the bottom line was that these school districts were not allowed to continue doing what they were doing, that they spent years in litigation, that now they're going to have to pay, not only their lawyers, but also the other side's lawyers' legal expenses, that they're going to conclude that it's just not worth it to try to get through that narrow window, especially when what they're trying to justify is something as ugly, and divisive, and politically unpopular as assigning children to schools on the basis of skin color.

JUDY WOODRUFF: So how, then, do you see this differently?

THEODORE SHAW: Well, you know, what they're trying to justify is integrated education. And while Mr. Clegg and others may want to stampede these school districts away from that commitment, the Louisville School District has already made clear today -- and I believe that the Seattle School District will follow suit -- that they remain committed to diversity.

Diversity is a fact of life in this country. To suggest that, in the 21st century, we should allow ourselves to slip back to a kind of 19th- or 20th-century racial isolation and segregation in a global economy is suicide for all of our children and all of our citizens.

Avoiding racial discrimination

JUDY WOODRUFF: Is that what's going on here, Mr. Clegg?

ROGER CLEGG: Well, I think the question is whether anyone believes that a politically correct racial and ethnic mix, that kind of diversity, is worth the price of racial discrimination. And I think that most Americans would say that, no, it is not.

There's nothing wrong with diversity, but if the only way that a school can achieve this politically correct racial and ethnic mix is by telling school children that whether you can come to this school depends on what skin color you are, that's too high a price to pay for that kind of diversity.

THEODORE SHAW: The citizens of Jefferson County, Kentucky, after decades of struggling with the issue of desegregation of public schools, overwhelmingly supported this plan -- black, white, all the other citizens -- overwhelming support. And they're clear about what this is all about.

This isn't about anything ugly. This is about the fact that, if you want to segregate America, you start with public schools. If you want to integrate America, start with public education. That's what Brown was about.

JUDY WOODRUFF: Mr. Clegg, you're saying you don't see this as turning the clock back?

ROGER CLEGG: No, I think that the principle that Brown stands for is that a school district does not look at a child and say that where you can go to school depends on what color you are. That's what Brown rejected, and that's what the Supreme Court ruled today.

JUDY WOODRUFF: Does this decision potentially say something more, Mr. Clegg, about affirmative action? This was not about affirmative action, per se, but do you read into it anything down the road?

ROGER CLEGG: Yes, I do. I think that what this shows is that there's a majority of the court -- including the two newest justices, Chief Justice Roberts and Justice Alito -- who are extremely skeptical of any kind of racial and ethnic classification or preference or discrimination, and that they are going to be very reluctant to allow that kind of use of race in American life. And I think that that's the right thing to do.

You know, as America becomes increasingly a multiracial and multiethnic society, it just doesn't make sense for our governments to be classifying people according to skin color or what country their ancestors came from and telling them that what you can do, where you can go to school, what kind of job you can have, where you can go to college, what kind of contracts you can do with the government, all those things, hinge on your skin color.

THEODORE SHAW: You know, this country for 335 years segregated African-Americans or enslaved them. We've only been about the business of remedying that history for a few decades, and we still see massive inequality around us. Mr. Clegg and his colleagues suggest that we ought to gouge out our eyes and pretend that race doesn't matter anymore, when, in fact, we all know that it does.

What I believe is that Justice Kennedy's opinion indicates trouble for him and his colleagues going forward, because Justice Kennedy makes clear that, under certain circumstances, race can be considered, and he doesn't believe that we can treat efforts to include people in the same way we do efforts to exclude people on the basis of race.

JUDY WOODRUFF: Just quickly, are you trying to pretend that racism doesn't exist?

ROGER CLEGG: Absolutely not. Racism does exist. We've made enormous progress, and I think that anybody who thinks that we haven't is delusional, but racism still exists.

But the best way to fight discrimination is not by piling more discrimination on top of it, not by creating new victims of racial discrimination. The best way to fight discrimination is by enforcing the laws that we have on the books against discrimination and by helping impoverished people, who come in all colors, but regardless of their skin color.

If there are poor kids or kids who are not getting a good education, help them improve their schools, but it should be done for all of them, regardless of their skin color, whether they're white or black or brown or yellow.

JUDY WOODRUFF: We are going to have to leave it there. Roger Clegg, we thank you for being with us.

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